Lawsuit calls Microsoft's anti-piracy tool spyware

Company disputes claim, says action is baseless

Updated 10:00 pm, Wednesday, June 28, 2006

A computer user is suing Microsoft Corp. over the company's Windows Genuine Advantage anti-piracy tool, alleging that it violates laws against spyware.

The suit by Los Angeles resident Brian Johnson, filed this week in U.S. District Court in Seattle, seeks class-action status for claims that Microsoft didn't adequately disclose details of the tool when it was delivered to PC users through the company's Automatic Update system.

Windows Genuine Advantage is designed to check the validity of a computer user's copy of the operating system. But the tool became a subject of heightened controversy earlier this month, after PC users began noticing that it was making daily contact with Microsoft's servers without their knowledge, even if their software was valid.

"Microsoft effectively installed the WGA software on consumers' systems without providing consumers any opportunity to make an informed choice about that software," the suit alleges.

A Microsoft spokesman, Jim Desler, called the suit "baseless" and disputed the characterization of the tool as spyware.

"Spyware is deceptive software that is installed on a user's computer without the user's consent and has some malicious purpose," Desler said.

Windows Genuine Advantage "is installed with the consent of the user and seeks only to notify the user if a proper license is not in place."

Microsoft issued a software update this week to address some of the concerns computer users had raised about the Windows Genuine Advantage tool.

The suit deals with one of the software industry's most controversial issues -- the circumstances under which companies should be able to deliver programs to computers, and what they must disclose to PC users when they do.

The lead lawyer representing Johnson in the suit against Microsoft, Scott Kamber of Kamber & Associates LLC in New York, was co-lead counsel for consumers in the lawsuit over Sony Corp.'s surreptitious placement of copy-protection "rootkit" software on PCs, through music CDs. That software, designed to prevent music from being copied illegally, disabled protections against viruses and spyware, potentially leaving unaware computer users vulnerable. Sony settled the suit.

But even those who have questioned the behind-the-scenes activities of Windows Genuine Advantage say the Microsoft tool doesn't appear to do anything damaging.

"It doesn't seem to me that this particular incident rises anywhere near the kind of damage that is normally associated with spyware," said Lauren Weinstein, co-founder of People for Internet Responsibility. "That's not to say that Microsoft should have done it the way they did. ... But that doesn't necessarily make it illegal."

Kamber acknowledged key differences between the Microsoft and Sony cases. But he said some of the same underlying principles are at work.

"The statute says that people have a right to know what's on their computer," Kamber said. "We're at a point in time right now where people's rights on their own computers and technology are really at issue."

Kamber declined to say how the suit began or to describe his client, Johnson, beyond calling him "a typical user of Microsoft operating systems."

Microsoft has said that the purpose of the daily check-in was to allow for changes in the tool's settings, because Windows Genuine Advantage was still in test mode. The company says those who installed the tool via the company's Automatic Update system have always seen a license agreement that gave information about the tool.

At the same time, a previous version of the WGA license agreement didn't explicitly state that it was making the daily check-ins.

"The disclosure was slim to none, and it certainly isn't what we're looking for as a matter of public policy from a distinguished company like Microsoft," said Ben Edelman, a Harvard University doctoral candidate and anti-spyware researcher.

Earlier this week, Microsoft released a finished version of Windows Genuine Advantage tool that it says no longer checks in daily with its servers.

The company also issued a revised license agreement that spells out in greater detail what Windows Genuine Advantage does, including the fact that it sends the PC user's Windows product key and Internet Protocol address to the company.

But the suit goes beyond that issue to challenge the company's practice of using the automatic updating system as one method of delivering the tool. Although Microsoft has delivered a variety of programs through Automatic Updates, it's most commonly used for security updates, and the suit alleges Microsoft effectively hid delivery of the tool under that guise.

Microsoft's Desler disputed that assertion and said the suit shouldn't obscure what he called the "real issue," software piracy. "The WGA program was carefully developed to focus on what is really an industrywide problem in a manner that is lawful, and provides customers with the confidence and assurance that they're running legitimate software," he said.

The suit, which seeks unspecified damages, makes claims under statutes including the Washington Consumer Protection Act and California Unfair Competition Law, in addition to anti-spyware statutes in both states.